Public Records

June 26, 2010

After almost a year of mandated closures for all superior courts statewide in California on the third Wednesday of each month, the mandatory once-a-month court closures are slated to end on Wednesday, June 16, 2010 before the start of the new 2010-2011 fiscal year on July 1.

The San Diego Union-Tribune reports that the San Diego Superior Court and the 4th District Court of Appeal will no longer close for one day each month and will be open on the third Wednesday of the month, at least in July and August. However, officials warn that court employees still may be required to take one unpaid day off per month and that the court closures could resume later in the year, the Union-Tribune reported.

For fiscal year 2009-2010, the Judicial Council of California recommended closing all courts throughout the state for one business day per month for 10 months of the fiscal year in an effort to save over $80 million dollars for the cash-strapped state. The closures were treated as court holidays, meaning that:

The court closure days would not affect statutory deadlines for trials and other hearings.The court closure days would not affect computing the time to file documents.Meanwhile, the San Bernardino Sun reports court closure days in courts across San Bernardino County could end this month after $100 million was restored to the state judiciary’s budget but that court officials won’t know for sure whether the closure days are completely finished until the state’s budget is passed by the California Legislature.

Elements of the 2010-2011 judicial budget are currently being reviewed and the state’s budget is usually not adopted before the next fiscal year begins July 1, the Sun reports.

To stay informed about the latest news on the California court closures, visit Employment Screening Resources (ESR) at http://www.esrcheck.com .

January 19, 2009

There is an increasing awareness in the United States that ex-offenders are having difficulty obtaining jobs due to their criminal records. Although employers have a duty to exercise due diligence to promote a safe workplace, civil rights laws also do not permit employers to automatically disqualify someone with a criminal record before considering if there is a business justification based upon the nature and gravity of the crime, the nature of the job and how long ago the job occurred. As noted above, New York has added additional factors that can be considered.

As reported in past ESR newsletters, there have been efforts made to help ex-offenders obtain jobs. In its January, 2007 newsletter, ESR reported that a number of municipalities were not asking about past criminal records on the initial application. The short-hand name is “ban the box,” referring to the box on an application asking about past criminal conduct. The logic behind theses law is to ensure that applicants are considered for jobs based upon their qualifications and experience before the employer searches for criminal records. In addition, such protection also encourages ex-offenders to apply in the first place. Cities are concerned about the burden placed on them by large numbers of un-employed ex-offenders. See: http://www.esrcheck.com/newsletter/archives/January_2007.php#T1

In March, 2008, the ESR newsletter discussed a meeting of the Conference of Mayors in New York City on the same topic. According to a press release from the Conference;

“With 1 in 31 American adults in prison, jail, on parole or probation, the US prison system is in crisis. Hundreds of prisons nationwide are overcrowded to the breaking point, and high recidivism rates are largely to blame: 39 percent of prisoners have served three or more sentences. This cycling in and out of prisons is taking a devastating economic toll on already-vulnerable urban communities. At this critical moment, policymakers and experts are determined to come together and develop concrete solutions to making sure that people who leave prison do not reoffend and go back.”

In passing the new laws in New York, the New York legislature gave as a justification that up to 60% of ex-offenders are unemployed one year after release and there is a strong correlation between unemployment and recidivism. The legislature cites statistics that, in New York State, eighty-three (83%) of individuals who are in violation of the terms of their probation are unemployed. See (legislative justification contained in New York A07847)

The bottom-line: As a society, we do not want to risk the lives and property of people by bad hiring decisions. Employers who fail to exercise due diligence can be sued, and innocent consumers, co-workers and members of the public can be the victims of workplace violence, theft or other wrongdoing.

On the other hand, our society does not want to create a permanent class of unemployable ex-offenders who can never re-enter society and be productive. Automatic rejection of any applicant with a criminal record makes it very difficult for an ex-offender to get back into the workforce. Given that, on the average, it costs over $30,000 a year to incarcerate a prisoner in the United States, and that without a job it is very difficult for an ex-offender to become a law abiding tax paying citizen, it is critical that society gives everyone an opportunity to work. Unless ex-offenders can get a second chance, our society will spend more time and resources building prisons instead of schools, hospitals and roads.

The key is to understand that there is a job for everyone, although not everyone is qualified for every job. Employers should not overreact or react automatically because an otherwise qualified applicant has had difficulty in the past unless there is a business justification to reject the applicant. However, this pre-supposes that employers are doing proper screening and practice due diligence in their hiring.

It is also important for our society to help with the re-entry of ex-offenders by supporting programs and opportunities. In fact, the National Association of Professional Background Screeners (www.napbs.com) has donated money to such programs.

Background screening firms are often caught in the middle of this debate. Although a screening firm does not make the hiring decision, screening firms are retained by employers to research potential criminal records. A background screening firm should clearly advise employers that there are limitations on the use of criminal records.

November 14, 2008

Canadian court records are public information. The court system in Canada is similar to the U.S. system in that there is a federal court system with a supreme court and there are provincial systems with upper and lower courts.

October 12, 2008

The scope of information that exists online about people and businesses is staggering. If one needs to search for a public record or to do a background check, one merely has to Google and the problem is solved, right? Not so fast, according to authors Cynthia Hetherington and Michael Sankey. Their new book – The Manual to Public Records Online – reveals how public records and public record searching websites are not created equal, and teaches how to professionally use government and vendor online resources.

According to the authors, “There are four important truths about searching public records online from government agencies—1. Less than 50% of the available public records from the government can be found online. 2. Government sites can be free or fee-based. Generally, the fee-based sites are more robust. 3. Most free government public record websites contain no personal identifiers beyond the name.4. Usually the searchable and viewable information found online is limited to name indexes and summary data rather than document images. Most access sites – especially the free access sites – permit the former, not the latter.”

The authors also present public record searching guidelines when using sites maintained by private entities. The public is often fooled by websites that tout misconceptions or unrealistic features. The Manual gives an information edge on how to evaluate sites and also on the best sites to use based on topic or record category. The 600 pages of insight and evaluation place the reader on the right path to become an expert.

Cynthia Hetherington, a licensed private investigator and President of the Hetherington Group, is a nationally known speaker and she is author of Business Background Investigations. Michael Sankey is the founder and CEO of BRB Publications, Inc. and he is author or editor of more than 60 publications including The Sourcebook to Public Record Information and The Public Record Research TIPS Book.

October 10, 2008

An Urban Myth that can surprise job applicants is that after a judge vacates, expunges, sets aside, defers the adjudication or otherwise judicially erases a criminal record in some fashion, the records disappear and can never be found.

With limited exceptions, the general rule is that the government does not destroy records. In the typical scenario, even if the judge orders a set aside, the consumer’s name can still be found by searching the court indexes and the case can still be viewed as a public record. As a general rule, the only way that a background firm knows that there has been a judicial set aside is to examine the court file where all court orders should be noted.

Of course, each state is different but as a general rule, unless an applicant has been advised by an attorney that the criminal case will be sealed and physically not available anywhere, applicants need to understand that even a criminal case that they thought was erased may still show up.

Even in those situations where the court has ordered the case sealed, the damage may already be done since the record of the case may already reside in a commercial database. If a background firm locates the case in a commercial database, then the background firm has certain obligations under the federal Fair Credit Reporting Act and similar state laws. A background screening firm is required to either notify the applicant that a criminal record is being provided, or must pull and examine the actual court file to ensure accuracy. For employers that want to avoid finding out about criminal records that have been judicially set aside, the best practice it make sure you are working with a screening firm such as Employment Screening Resources that automatically pulls the court file whenever there is a database match to make sure the criminal record is complete, accurate, up to date, applies to your applicant and is reportable.